The question of who can contest a will in Queensland depends ultimately on a number of factors; mainly the domicile of the deceased, the location of the deceased estate and assets, and the category of person contesting a will.
Can anyone contest a will?
The most important factors regarding who can contest a will are:
- The ‘domicile’ of the deceased person (i.e. the place that the deceased person considered ‘home’); and
- The location of the deceased person’s estate and assets.
This is important because each State and Territory of Australia has different criteria as to who is an eligible further provision applicant, and is able to contest the will of the deceased person. The location of the deceased person and their estate is important because it determines the laws applicable to the matter, and the proper place for it to be determined.
Contesting a will in QLD
As an extreme example, a South Australian court is hardly the appropriate place to determine further provision for a deceased Queenslander, whose assets were all based in Queensland. In those circumstances, the appropriate laws and courts would be Queensland’s.
What categories of persons can contest a will in QLD?
Regarding who can contest a will in QLD, the eligible categories are specified in the Succession Act 1981, under Part 4 – Family Provision. Those categories are:
The Deceased’s Spouse
Under Queensland succession law, a spouse can seek further provision from the estate of their deceased spouse. “Spouse” includes:
- The husband or wife of the deceased person;
- The de facto partner of the deceased person; and
- The registered partner of the deceased person.
Additionally, there can be more than one spouse for a deceased person. For example, it is possible for a person to be in a de facto relationship with a partner, whilst remaining married to another person.
The Deceased’s Child
Queensland enables the child of a deceased person to contest the will and seek further provision. The child is not limited to biological children, but includes all of the following:
Natural (biological) children;
Adopted children; and
A deceased person’s children within the above categories are eligible to seek further provision from their estate. However, the parent-child relationship alone does not mean that a claim will be successful. Our estate litigation lawyers will consider all relevant factors in considering and advising you on the merits of your potential family provision claim.
The Deceased’s Dependant
The Succession Act 1981 (Qld) also permits a “dependant” of the deceased person to seek further provision from the estate. To be a dependant, the claimant must be:
- “wholly or substantially maintained or supported” by the deceased person at the time of their death; and
- Also, be either:
- A parent of the deceased;
- The surviving parent of an infant child of the deceased person; or
- A person under the age of 18 years.
Abiding by time frames when you need to dispute a will
There are also specific timeframes within which your further provision claim must be notified to the executors, and filed with the court. If you are considering contesting a will, our lawyers are able to advise in more detail based on your specific circumstances.
The above information relates to Queensland. However, our lawyers also have experience with and can advise on family provision matters in other Australian States and Territories. Please contact us to discuss your potential claim.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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Written by Thomas Ashton – Senior Associate.